Suit Alleging Political Discrimination at DOJ May Proceed

Three unsuccessful applicants to the Department of Justice’s Honors Program sued the federal government alleging  they were rejected on political grounds.  The district court in D.C. rejected their claims.  Last Friday, however, in Gerlich v. U.S. Department of Justice, the U.S. Court of Appeals for the D.C. Circuit reversed the district court’s grant of summary judgment to the federal government on the plaintiffs’ Privacy Act claims.  Here’s the introduction from the court’s opinion:

“This case arises from a dark chapter in the United States Department of Justice’s history.” . . . Appellants were three applicants for attorney positions under the Honors Program in 2006 who alleged that they were not selected for interviews because of their political affiliations. “The Privacy Act generally prohibits government agencies from maintaining records describing how an individual exercises First Amendment Rights.” . . . Appellants claimed that senior officials at the Department of Justice nonetheless created such records in the form of annotations to appellants’ applications and internet printouts concerning their political affiliations. They contend that the district court erred in dismissing some of their claims, granting summary judgment on the remaining claims, and denying their motion for class certification.

We hold that summary judgment was inappropriately granted on appellants’ Privacy Act claims under 5 U.S.C. § 552a(e)(5) and (e)(7). In that regard, we conclude, in light of the destruction of appellants’ records, that a permissive spoliation inference was warranted because the senior Department officials had a duty to preserve the annotated applications and internet printouts given that Department investigation and future litigation were reasonably foreseeable. On remand, the district court shall construe the evidence in light of this negative spoliation inference, which would permit a reasonable trier of fact to find that two of the appellants were harmed by creation and use of the destroyed records. Otherwise we affirm.

Politico‘s Josh Gerstein reports on the case here.

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